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only the Legislature should occupy, since it would enable him to either destroy or maintain the policies of the state according to his own will and purpose. Moreover, it would be inconsistent to admit a mutual regulation by employer and employé of a matter which had been deemed of sufficient importance to require an act of the Legislature to express a specific state policy. Such acts being passed to define rights and duties for the better regulation of business, and hence indirectly for the better regulation of society, must be sustained. They are not amenable to the doctrine of assumption of risk for the reasons we have stated, since a contrary decision would result in the courts loosing that which the Legislature has bound. Nor is the result changed by the fact that the statute fixes a penalty for its violation. The doctrine that the assumption of the risk does not apply is in harmony With the purpose of the penalty, and there is nothing in the act to indicate that the penalty was exclusive of the employé's right to maintain an action for damages. The views herein expressed are sustained by the great weight of authority in this country. The question has never before been discussed in this state, so far as we are aware, yet has received much discussion in other jurisdictions. The cases are very numerous and will be found in the cited cases themselves and the notes to the cases. Streeter V. Western Wheel Scraper Co., 254 Ill. 244, 98 N. E. 541, 41 L. R. A. (N. S.) 628, Ann. Cas. 1913C, 204, and note; Fitzwater v. Warren, 206 N. Y. 355, 99 N. E. 1042, 42 L. R. A. (N.S.) 1229, and note; Curtis-Cartside Co. v. Pribyl, 38 Okl. 511, 134 Pac. 71, 49 L. R. A. (N. S.) 471, and note; Poli v. Numa Block Coal Co. 149 Iowa, 104, 127 N. W. 1105, 33 L. R. A. (N. S.) 646, and note; Low v. Clear Creek Coal Co., 140 Ky. 754, 131 S. W. 1007, 33 L. R. A. (N.S.) 656, Ann. Cas. 1912B, 574; Narramore V. Railroad, 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68. [3] We have several cases in this state which hold that a violation of the terms of a statute is negligence per se, and renders the person guilty of such conduct responsible for all injuries which may be suffered as a direct consequence thereof, among which are Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 S. W. 460, 30 L. R. A. S2, 49 Am. St. Rep. 935; Riden v. Grimm Bros., 97 Tenn. 220, 36 S. W. 1097, 35 L. R. A. 587; Railway v. Haynes, 112 Tenn. 712, 81 S. W. 374; Adams v. Inn Co., 117 Tenn. 470, 101 S. W. 428. But We have no case On the narrow point covered by the preceding discussion and the authorities cited thereunder. However, in Adams v. Inn Co., the same principle was applied to the case of a boarder at a hotel which, at the time of its destruction by fire, had not been equipped with fire escapes as required by statute.

We find no error in the judgment of the Court of Civil Appeals, and it must be affirmed.

WHITTAKER v. LOUISVILLE & N. R. CO. (Supreme Court of Tennessee. Oct. 2, 1915.)


—WARRANT—SUFFICIENCY. . . In a suit against a railroad for personal injury on or near its tracks, begun before a justice of the peace, the warrant must sufficiently advise the defendant of the nature of the suit.

|Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 251–257; Dec. Dig. Q=80.]

2. RAILROADs C=>312 – ACCIDENT AT CRossING-SIGNALS. Under Shannon's Code, § 1574, subsecs. 1, 2, requiring the overseers of public roads to place at each railroad crossing a sign marked, “Look out for the cars when you hear the whistle or bell,” and providing that no engineer need blow the whistle or ring the bell unless so designated, an engineer is not required to sound the whistle or bell at a crossing not designated by such sign. [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§998–1001, 1003–1005; Dec. Dig. 3:312.]

3. RAILROADS @->320, 344 – ACCIDENT AT CROSSING-PLEADING—OBSTRUCTION. A count, in an action for personal injury, under Shannon's Code, § 1574, subsec. 4, providing that every railroad shall keep the engineer or fireman always upon the lookout, and when any obstruction appears the whistle shall be sounded, the brakes put down, and all possible means taken to prevent an accident, is a count under the common law, unless it was further charged that the person or object on the track was struck by the train, and by the addition of such circumstance the count is brought within Shannon's Code, § 1575, providing that every railroad failing to observe specified precautions shall be responsible for all resulting damage to persons or property, and section 1576, providing that no railroad observing such precautions shall be responsible for injury to persons on its road, so that where the warrant did not charge that the train struck the plaintiff or her wagon, and it appeared that she jumped from the wagon, the action was under the common law, and there was no absolute liability for failure to take the specified precautions. [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1014-1016, 1019, 1107–1112; Dec. Dig. G->320, 344.] 4. RAILROADS @:351 – ACCIDENT AT CRossING-INSTRUCTION. In an action for personal injury at a crossing brought under Shannon’s Code, § 1574, subsec. 4, an instruction that it was the duty of the railroad on seeing plaintiff's wagon on or near the track, and in view of the train’s speed of 50 miles an hour, to sound the whistle and endeavor to prevent an accident, was proper; but an instruction that plaintiff was entitled to recover because the engineer made no effort to stop even though no collision occurred Was improper. [Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1193–1211, 1213–1215; Dec. Dig. Q: 351.] 5. RAILROADS C+850 – ACCIDENT AT CRossING – QUESTION FOR JURY – CONTRIBUTORY NEGLIGENCE. In an action for personal injury at a crossing brought under Shannon's Code, § 1574, subsec. 4, held on the evidence that it was for the jury to say whether plaintiff was negligent

&=>For other cases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes

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NEIL, C. J. This action was originally brought before a justice Of the peace to recover judgment for an injury alleged to have been inflicted upon the plaintiff by the defendant. There Was a judgment in favor Of the plaintiff before the justice, and from this an appeal was prosecuted to the circuit court Of the county. In that Court there Was likewise a judgment against the railroad company. An appeal Was then prosecuted to the Court of Civil Appeals, and the judgment Of the circuit court was there reversed and the cause remanded for new trial. We are of the Opinion that the conclusion reached by the Court of Civil Appeals was correct, and that the judgment of that court should be affirmed. We Shall now endeavor to make clear Our reasons for this conclusion. [1] Although the Suit WaS begun before a justice Of the peace, and, according to the practice before such officers, there was no declaration but only a warrant, yet this warrant Was practically as full as the declaration in a circuit court, and necessarily SO, inasmuch as under recent decisions of this Court it has been held that the Warrant must Sufficiently advise the defendant Of the nature of the suit brought against him in the class Of CaSeS before uS. The Substance Of the Warrant is that Mrs. Whittaker, on a certain day stated, was in a Wagon driven by One Luttrell; that before the hOrses entered upon the track Of the defendant company the team was slowed down, and both plaintiff and Luttrell looked and listened, and neither Saw nor heard a train; that When the horses had gotten upon the track she saw one of defendant in error's trainS COming around a curve about 500 feet distant and running very rapidly; that she urged the driver to Speed up his team, but the train was coming so fast she feared they could not clear the track in time, and therefore she ran to the front Of the wagon and jumped Out On the ground, falling in the midst of some slag and other rough material

on the side of the track, whereby she was injured. [2] There is a paragraph in the Warrant averring that the defendant failed to sound the Whistle Or bell Of the locomotive at the distance Of One-fourth of a mile from the crossing, and at short intervals till the train had passed the Crossing, pursuant to SubSection 2 of section 1574 of Shannon's Code, and that this was one cause of the injury. This portion of the warrant, however, is no longer insisted upon because under SubSection 1 Of the same section, as held in Graves v. Railroad, 126 Tenn. 149, 148 S. W. 239, there Was no duty incumbent On the railroad to comply with the provision referred to, because it did not appear in the evidence that the county warning (“Look out for the cars

"| When you hear the Whistle Or bell”) had

been erected at the crossing pursuant to said Section 1. The Section provided that no engine driver should be compelled to blow the whistle Or ring the bell at any Crossing unless SO designated. [3] There Was another paragraph based On subsection 4 of section 1574. This subsection reads as follows: “Every railroad company shall keep the engineer, fireman, or some other person, upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident.”

It was held in Railroad V. Crews, 118 Tenn. 52, 62–64, 99 S.W. 368, that a count under subsection 2 Was a count under the statute, but that a count under Subsection 4 Was a COunt under the common law, unless it Were further charged that the injury Was caused by contact with the moving train, or, in other Words, unless the object on the track Or road Should be Struck by the train. The reason given was that the provisions of subSection 2 Were peculiar to the Statute, While those of SubSection 4 Simply expressed common-law duties. That is to Say, that in SO far as concerned the proVisions Of SubSection 4 the Statute and the common law are concurrent, and that in Order to bring a count under the statute the additional circumstance above referred to should be added. By the addition of Such further matter the charge is brought Within the scope of sectionS 1575 and 1576 of Shannon's Code, Which read as follows:

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In Order to bring these sections into operation, it must appear that the obstruction or Object on the road Was actually struck by the moving train. It has been hitherto deemed that this point was fully settled by the case of Holder V. R. Co., 11 Lea (79 Tenn.) 176. It is denied, however, by counsel in the present case, that the authority referred to settled the question. We need Only refer to page 179 of the book in which the case is reported, where the question is stated thus: “The question is whether the company shall be held liable for a loss to which, although the innocent cause, it in no way contributed, and which was not occasioned by a collision with its train.” This has been repeatedly referred to as Settling the question. See Railroads V. Sadler, 7 Pickle (91 Tenn.) 508, 509, 19 S. W. 618, 30 Am. St. Rep. 896; Railroad v. Phillips, 16 Pickle (100 Tenn.) 130, 42 S. W. 925. If there be any doubt remaining after the citation of these cases, it cannot persist in the face of the following quotation from a more recent CaSe: “The first error assigned is that there is no

evidence to sustain the verdict. “This must be sustained. According to the testimony which the defendant in error, himself, gave upon the trial below, he was walking down the track at a point where he could have been seen for quite a hundred yards, but he was not seen, or if seen by the lookout upon the engine, none of the statutory precautions were complied with ; the first warning he had was the glare of the headlight when the engine was almost on him; he sprang suddenly to one side, and cleared the track, but his foot slipped on the slag with which the track was ballasted; this caused him to fall backwards, and in Some way his hand fell under the wheels and was severed from his arm a little ways above the wrist. He was not struck by the engine or any portion of the train; his hand and arm were simply run over in the manner stated. The company was negligent in not complying with the statutory precautions. The defendant in error was negligent in being upon the track at all, and using it as a passway at 10 o’clock at night. He was especially negligent because he went upon the track at that time of night in the physical condition he then was in, that is, considerably under the influence of intoxicating drink, and defective in eyesight, and also in hearing. Moreover, it is apparent from his testimony that he was looking down at his feet as he walked along picking his way, and was not either looking or listening for a train. “The statute (Sh. Code, § 1575) provides that any railroad company that fails to comply with the precautions laid down in the preceding sections shall be responsible for all damages to person or property ‘occasioned by or resulting from any accident or collision that may occur.” “This statutory rule has been administered by this court with great strictness, nor do we in any wise desire to depart from the policy of the law as evidenced in our previous decisions. But it has not been held in any case, that there could be a recovery where there was no collision on the track, or within the sweep of the moving train. Here, there was no collision. The defendant in error had cleared the track and, after doing so, threw his hand back under the wheels of the passing train. This was not a collision in the sense of the statute. It is true that the railway company was grossly

negligent, and so was the defendant in error; but no matter how negligent the railway company is, in this class of cases, its liability is

conditioned upon a collision. If there is no collision, there is no liability. If there is a collision, and the railway company fails to show that it complied with all the statutory precautions, it is liable for some damages, no matter how negligent the injured party was; such is the result of our decisions. But it could not be held, under the section of the Code referred to, that, if a trespasser upon the track of a railway company seeing the train coming and close upon him should jump off and break his leg, the company would be liable, on the ground that it did not comply with the statutory precautions. Here there would be an absence of liability because of the absence of a collision. But we need not further illustrate or discuss the matter, but sum up our views upon the question with the statement that on grounds of public policy the statute should be strictly enforced in all cases to which it applies, but should not be invoked at all in cases to which it does not apply.” Va. & S. W. Ry. . V. James S. Richardson, Mss., Knoxville, September term, 1904. The warrant in the present case does not charge that the train struck the plaintiff, or even the Wagon in Which she had been riding. As a matter of fact, it appeared in the evidence that after the plaintiff jumped out of the wagon it cleared the track before the train reached the crossing, but only by the Space of about 18 inches. [4] The case was thus not under the statute, but under the common law; notWithstanding this, however, the trial judge charged the substance of section 1575 which made a case of absolute liability on failure to comply with the precautions. He thus, in effect, told the jury that, even though there had been no collision with the train, yet there Was an absolute liability. This was clear error, and for this the Court of Civil Appeals rightly reversed the judgment. [5] As the case, however, must go back for a new trial, it is proper to say that the circuit judge committed no error in charging the substance of Subsection 4 Of Section 1574. It was the common-law duty Of the railroad company, on seeing the wagon. On the track, so near, and especially in view of the great speed at which the train was going—50 miles an hour—to do the things prescribed in that subsection. If an effort had been made to stop the train, it is very probable that the plaintiff would not have felt the necessity of jumping out of the wagOn as she did, Since She Would have Seen a better hope of escaping injury in the additional time thus allowed the wagon to clear the track. It was for the jury to say whether, under all the circumstances, she acted With reasonable prudence and caution; that is to say, whether she was reasonably justified in springing from the wagon instead of trusting her safety to the speed of the horses, as the driver did. The trial judge should not, in effect, have told the jury that, even though no collision resulted, she was entitled to a verdict merely from the fact that the engine driver made no effort to stop the train. What we have said fully disposes of the first assignment of error filed by the plaintiff in this court showing that it is not well taken. The second assignment is immaterial. Let the judgment of the Court of Civil Appeals be affirmed, and the case remanded for new trial. A copy of this opinion will go down With the procedendo. :

CINCINNATI, N. O. & T. P. RY. CO. v. RODDY et al. (Supreme Court of Tennessee. Oct. 2, 1915.) 1. LIMITATION OF ACTIONS Q->55-FLOWAGE —DAMAGES-CONTINUING DAMAGES. Where a railroad ditch along the right of way is allowed to fill up by the road's negligence, throwing water upon plaintiffs' lands, depositing gravel and cinders, a distinct right of action arises with each wrongful act in the overflow or submergence of plaintiffs' lands due to the railroad's negligence in failing to keep open the ditch. [Ed. Note.—For other cases, see Limitation of #". Cent. Dig. §§ 299–306; Dec. Dig. Q:

2. LIMITATION OF ACTIONS C-55—FLOWAGE —DAMAGES—LIMITATIONS. Where defendant railroad, by allowing the ditch along its roadbed to become filled up, periodically inundated plaintiffs' adjacent lands, depositing gravel and cinders, the only damages recoverable were those caused by the deposit of gravel within the period of the statute of limitations, taking the value of the land at the beginning of the period as normal, although it was then covered with gravel deposited by previous floodings, as to which plaintiffs' causes of action Were barred. [Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig.

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Appeal from Circuit Court, Rhea County; Frank L. Lynch, Judge.

Action by B. W. and M. S. Roddy against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiffs, and defendant appealed to the Court of Civil Appeals, Which reversed the judgment and remanded the Cause. Judgment modified in the Supreme Court, and cause remanded.

Wright & Jones, Of KnOXVille, for appellant. Givens & Rhea, for appellees.

WILLIAMS, J. This suit was commenced July 14, 1914, by B. W. and M. S. Roddy against the railway company to recover damages done to a tract Of land through Which the defendant's roadbed 1s constructed, it being alleged that a ditch made by the company along itS right Of Way for the protection of the plaintiffs' farming land by negligence was allowed to fill up, thus throwing the flow of Water Out On their land and causing a deposit of sand, gravel, and cinders to form thereon to its injury.

The defendant COmpany filed a plea of the statute of limitation of three years, applicable to injuries to realty.

Plaintiffs' OWn proof ShOWed that the land Was thus CauSed to be abandoned as unfit for

usual tillage about 15 years before the Suit Was brought; that all of this land continued to be usable for pasturage until about 2 years before the trial, when a part of Same became wholly unfit for any purpose, while another portion yet remained Capable Of uSe for grazing purposes. The condition grew Worse as the land Was Overflowed from time to time and as the depositS Were made OVer its Surface. The Court of Civil Appeals properly reVersed the judgment Of the circuit Court On account of the charge of the trial judge being too meager, contradictory, and confusing, and the CauSe Was remanded for a new trial. The only question discussed before us is the proper measure of damages to be applied in the retrial in the court below in View of the plea Of the Statute of limitation. The Court of Civil Appeals held that the measure of plaintiffs' damageS “is the reaSOnable rental Value Of the land during the three years next preceding the institution of this suit; that is, such rental Value as they would have realized from it had the original Wrong never been committed.” [1] The case clearly falls within the rule of recurrent or continuing damages in force in this state under which a distinct right of action arises with each wrongful act in the Overflow or Submergence of plaintiffs' land due to the negligence of the railroad company in failing to keep Open the ditch. Carriger V. Railroad, 7 Lea (75 Tenn.) 388, 396; Railroad v. Higdon, 111 Tenn. 124, 76 S. W. 895. Many cases lay down in broad terms the further subsidiary rule that so long and as Often as Such a recurrent cause of action arises the plaintiff is not barred by the statute of limitation of a recovery for Such damages as have accrued within the statutory period, although a cause of action based Solely on the original Wrong may be barred; the recovery in such case being limited to such damages as accrue within the statutory period before action brought. Silsby Manufacturing Co. v. State, 104 N. Y. 569, 11 N. E. 264; McConnell v. Kibbe, 29 Ill. 485; Gabbett v. Atlanta, 137 Ga. 180, 73 S. E. 372; Knapp v. New York, etc., R. Co., 76 Conn. 311, 56 Atl. 512, 100 Am. St. Rep. 994; 25 Cyc. 1138. [2] The difficulty experienced by the Court of Civil Appeals was in determining what “damages accrue” within the period of three years limited by the statute under the above rule which it recognized. The holding of that court finds support in what was said by Way Of argument in the Case of Pickens V. Coal River Boom, etc., Co., 66 W. Va. 10, 65 S. E. 864, 24 L. R. A. (N. S.) 354. In that case it appeared that the defendant had so erected its boom below plaintiff's property as to cause sedimentary deposits of Sand to accumulate in the stream to the damage of plaintiff'S mill property. The court held to the doctrine of recurrent injuries and that the statute of limitations began to run, not from the construction of the boom, but from the date When the damages accrued, and, further, that Sediment SO deposited Within a period earlier than the period saved for action by the Statute (five yearS for damageS to realty in that state) was to be deemed an element Operating to effect damages accruing within the period limited by statute. It was said by the court: “It is not material when the sand was deposited creating that condition which caused the damage. That condition or state of the stream coming from the construction of the boom, and that condition still continuing entitling Pickens to recovery, how is it material when the sand was deposited so it continued to work damage within the five years for which this suit was brought? * * * Pickens had right to operate his mill in its original condition not only during the five years involved in the first suit, but also during the five years involved in the second suit, * * and it is utterly immaterial when that sand was deposited, so it continued to operate in diminishing the working capacity of the mill.” We need not stop to inquire how the working capacity of a mill property, if the deposit Were made On the plaintiff's property, can be distinguished in that attitude from the capacity of farm lands to produce crops, but the above case may be fairly said, in its argument at least, to Sustain the judgment here under review. But is that case, if sound on its immediate facts, sound in its argumentation in the respect indicated Or as applied to a case like this? In Lentz v. Carnegie Bros. & Co., 145 Pa. 612, 23 Atl. 219, 27 Am. St. Rep. 717, the plaintiff was the OWner of a farm a part of which was along a creek into which defendants habitually dumped Slate and slack depending upon the current and floods to carry it past plaintiff's land and away. Beginning about twenty-five years before the commencement of the Suit, the dumped materials by degrees were deposited on the land to its material injury. These deposits continued to be made Within the Statutory limitation period—six years in that state. The court held that the questions thus presented for jury determination Were: What WaS the COndition Of the land of plaintiff six years before the writ was issued? Was it covered by the deposit complained of? Whether the situation had been made worse during the six years, and to what extent? Giving, as a reason Why the measure of damageS adopted by the COurt below Was inapplicable, that it allowed a consideration by the jury of the land's value in its original condition, that is, before the deposits began to form, the court said:

“The defendants had pleaded the statute of limitations, and the inquiry was thereby limited to six years. The comparison which the tes. timony placed before the jury carried them

back to a time when the stream was not polluted, and the slate and slack had not been deposited on the plaintiff's land. It brought to their notice, not the injury done in six years, but the changes made from the beginning of operations on Brush, creek, which was nearly or quite a quarter of a century before the trial. While the learned judge told the jury, that the plaintiff could not recover for an injury sustained more than six years before his action was begun, he permitted testimony to be given which brought the entire change in the situation of the plaintiff's flat land to their attention and which contrasted its value if in its originai condition with its value in its present condition.” This Was held to be error. The ruling on the point in any case that is to the contrary of the doctrine thus announced by the Pennsylvania court, we think, disregards a fundamental principle in the law Of tOrtS, Viz.: “A single tort can be the foundation for but one claim for damages. * * * All damages which can by any possibility result from a single tort form an indivisible cause of action. Every cause of action in tort consists of two parts, to wit, the unlawful act, and all damages that can arise from it. For damages alone no action can be permitted. Hence, if a recovery has once been had for the unlawful act, no subsequent suit can be maintained. There must be a fresh act, as well as fresh damages.” 1 Freeman on Judgments, $ 2111; Railroad v. Brigman, 95 Tenn. 624, 32 S. W. 762; Love v. Railroad, 108 Tenn. 122, 65 S. W. 475, 55 L. R. A. 471; Railroad v. Matthews, 115 Tenn. 172, 91 S. W. 194. For these reasons, in cases Such as the One under review, the cause of action is not re. ferable to the Original Obstruction of the ditch, but to the subsequent Several recurrent tortious acts of Overflow which affected injuriously the lands of the plaintiff, as fresh acts giving rise to fresh damageS. Each trespass or fresh tortious act thus producing injury constitutes a cause of action, and this is Susceptible of being barred by the statute of limitations. When, for example, an overflow occurs on a date prior to the period of limitation, that Wrongful act and equally its result, the damage done, are barred when the applicable statute is pleaded. It is illogical, therefore, to treat such items of injury Or damage as projected forWard into the period of limitation as being themselves factors contributing to further injuries, as acts of wrong, since they are but the result of precedent acts, confessedly barred. When a cause of action is barred, it is barred in its entirety, not as to only one of the two elements of which it thus consists. The statute puts at repose all that preceded its period that was actionable. The Court of Civil Appeals was in error on this point, and its judgment will be modified, and the cause be heard on the remand in accordance With the ruling embodied in this opinion.

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